This is a complaint made by Prasenjit Samanta and Nibedita Samanta against (1) Kingshuk Biswas, proprietor of K.K.Enterprise of 19, Raynagar Park, P.S.-Bansdroni, Kolkata-700 070, OP No.1, (2) Krishna Guha, OP No.2, (3) Sudip Ranjan Guha, OP No.3 and (4) Pradip Ranjan Guha, OP No.4, praying for a direction upon the OPs to deliver the demarcated peaceful vacant physical possession of car parking space of the said premises to the Complainant and in the event of failure to deliver Rs.10,00,000/- to the Complainant as the cost of the said car parking space and its registration charges, to pay compensation to the tune of Rs.1,00,000/- for deficiency in services and litigation cost of Rs.20,000/-.

            Facts in brief are that OP No.1 and OP No.2 to 4 entered into an agreement for developing the land on behalf of K.K.Enterprise, OP No.1 and accordingly, the development agreement was entered into between the parties. OP No.2 to 4 and also OP No.1 signed on the development agreement on 7.11.2014.

            Complainant entered into agreement for sale which was executed on 7.11.2014. OP No.2 to 4 were well aware about the deed of conveyance made by OP No.1 and Complainant. OP No.1 handed over the key of a flat to the
Complainants, having an area of 785 sq.ft.

           But, in spite of several requests, neither OP No.1 nor OP No.2 to 4 provided the car parking space. Complainant decided to take shelter of the law and consulted their Advocate. Thereafter, Complainant received the lawyer’s letter where OP No.1 defended himself and handed over two copies of possession certificate to the Complainant. In spite of several correspondences, Complainant did not receive the car parking space. So, Complainant filed this case.

           OP No.2, 3 & 4 filed written version and denied all the material allegations of the complaint. Thereafter OP No.1 filed a petition praying for examining Complainant on dock and the said petition was rejected. Again OP No.1 filed a petition which was rejected. Thereafter, OP No.2 filed a petition which was rejected. They also prayed for dismissal of the case. OP No.1 also filed written version and denied all the material allegations. He has also prayed for dismissal of the case and the ground that it is not maintainable and there was no such terms to handover the car parking space.

Decision with reasons:

            Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition, against which OP No.2, 3 & 4 filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OP also filed affidavit-in-chief against which Complainant filed questionnaire and OPs made reply.

              Main point for determination is whether Complainants are entitled to the prayers which they have made.

              On perusal of the complaint petition, it appears that Complainants have prayed for an order directing the OPs to deliver the demarcated peaceful vacant physical possession of the car parking space.

               On perusal of the deed of conveyance which was entered into between Sudip Ranjan Guha, Pradip Ranjan Guha, Krishna Guha, Kingshuk Biswas on the one hand and Prasenjit Samanta and Nibedita Samanta on the other hand as venders and vendee respectively. It appears that in the second schedule of this conveyance deed it is mentioned that the flat and the car parking space sold and conveyed. Further, it mentions that the car parking space of 135 sq.ft. on the ground floor was handed over to the Complainant and it is mentioned in the Conveyance deed “Be it mentioned here that the Car Parking Space has not been specifically demarcated, all the car parking owners shall co-operate each other for ingress and egress of their respective cars”.

               As such the above terms mentioned in the conveyance deed clearly indicate that the demarcated car parking space was not conveyed to the Complainants.

               Further, Complainant seeks a direction upon the OPs to deliver the demarcated peaceful vacant physical possession of the car parking space. It is very surprising that at the time of purchase Complainants remained and willing to purchase the flat with car parking space on the conditions mentioned in the second schedule of the deed which was registered on 4.3.2015.

               So, how this Forum can direct the OPs to handover the demarcated car parking space when complainants agreed and purchased with the condition mentioned above.

               As such, we are of the view that the prayer for direction upon the OPs to handover to deliver demarcated peaceful vacant physical possession of car parking space specifically cannot be allowed and also and alternatively direction for paying Rs.10,00,000/- as the price of the car parking space cannot be allowed. It is because Complainants on the other side were willing to purchase the car parking space with the conditions mentioned in the second schedule.

                Second prayer is the compensation of Rs.1,00,000/- by OPs to the Complainants. In our view when the complaint has been filed is not according to the terms of the conveyance deed, the question of granting of compensation does not arise.

                Similarly, there is no question of granting litigation cost on the basis of the vindication of the right by the parties.

Hence,

ordered

                  CC/165/2016 and the same is considered and dismissed on contest.